Missing the mission for the wrong customs

Were the poor members of the Judicial Service Commission - and their long-suffering staff - ever to encounter my curriculum vitae, they will swiftly arrive at a terrible conclusion: while my confidence as a legal practitioner (though not a litigator of any kind of note) is unparalleled, my determination to eschew and elide many of their foibles and customs will horrify them to their very core. It is only this past week that I have had a chance to reacquaint myself with the expression "judgment per incuriam" and only because I was curious to confirm whether memories from twenty-one years ago were sharp as a tack or blunt as butterknife. I'll spare you the mystery: the memories are as blunt as a butterknife.

There was a recognition of the place of Gen Z in the judiciary. One of the members of the interview panel; declared that they form the majority of the workforce. The interviewers were obsessed with the question of how interviewees would manage this cohort of workers and it brought to my mind a sense of dread. No matter how had it has tried to demystify itself in the eyes of the public, the judiciary is stultifyingly bureaucratic, pigeonholing different cadres in neat boxes and bestowing on them qualities that satisfy the decision to pigeonhole them in the first place. I am, as my elected representatives tend to put it, of a contrary opinion.

All organisations have distinct cadres, with unique attributes and needs, and whose recruitments was undertaken to meet distant institutional needs. The aim of the institutional human capital development system is to forge them into a team and point them in the same direction. Institutional needs supersede demographic identities. Since the fateful anti-Finance-Bill-2024 "Gen Z protests", this demographic has been imbued with mysterious powers and bestowed with inexplicable needs, instead of seeing them as part of the continuum of public officers, an unbroken thread of recruits going back tot he founding of the Kenyan civil service. If change is to visit the judiciary, the change is to visit all cadres and hierarchies of the judiciary, to bring old doggies up-to-date with the artificial intelligence and ChatGPT world, and acculturate the Gen Z whippersnappers into the mysteries of the civil service. The aim, as always, is to forge a united workforce that is dedicated to achieving the institutional mission.

But in a Government festooned with buzzwords and "it" catchphrases, certain traditions are no longer followed, and the consequences are there to see: unhappy cadres at all levels of the civil services, dissatisfied at work, yet unable to depart for greener pastures because the world out there is wildly competitively cutthroat and only the most ruthless survive. Career in the "private sector" are quite often short-lived; the days of working for a single employer all through ones career are over. Indeed, more young people work more side hustles in a year than certain kinds of civil servants have done for thirty-five years.

And so in order to try and recreate customs long dead, there is a terrifyingly stuck-in-place generation of jurists who still cling onto a world where lawyer, and the advocates they became, memorised Latin phrases even if they no longer held onto the meaning behind the phrases. I could give you a reasoned explanation of why a court decision is considered invalid or not binding because it was made in ignorance or forgetfulness of a relevant statute or a binding precedent, leading to a demonstrably wrong conclusion, and why such a wrong decision would not be considered as precedent-setting. But I would not think it necessary, unless someone was truly determined to resurrect Cicero, to fall back on per incuriam to make my case.

Customs, particularly the customs of professions, must evolve. It is the only way that practitioners can keep up with a changing world. Principles, on the other hand - truth, justice, integrity, professionalism, hard work, dedication, honour - all those must hold strong. But, like the wigs and robes of yore, if you cling onto the wrong customs, you will draw the wrong lessons about the different cadres in your institution, and fall under the spell of catering to the needs of small, ill-defined fiefdoms - instead of building an effective institution to achieve a singular mission.

Lord Acton was right

Prof. Makau Mutua and Dr. David Ndii have one massive thing in common: their understanding of a "presidential system of government" is that under the current Constitution of Kenya, the president's mandate under Article 132 is expansive, and should not be fettered by constitutional and statutory interpretations regarding transparency or fiscal prudence. Obviously, the Katiba Institute is of a contrary opinion.

The constitutional and statutory limits of the the president's mandate under Article 132 will be canvassed by legal teams all the way to the Supreme Court and the decision by the High Court to annul the appointment of twenty-one advisors will not be the subject of this screed. Instead, we can attempt to examine why Prof. Mutua and Dr. Ndii are expending so much energy to re-establish the imperial presidency Kenyans buried on the 27th August, 2010.

Prof. Mutua's volte-face is particularly surprising; Dr. Ndii's not so much. The latter has been pretty open about his motives and motivations, and by and large, he has achieved his objectives. Prof. Mutua spent a considerable amount of his professional live as a lawyer, constitutional expert, political commentator and sounding board to the political opposition in staunch opposition to the establishment, perpetuation and expansion of an imperial presidency. He has cavilled against the idea that a president has the freest hand in how he forms his government, whom he appoints, what he pays them, and what the presidency is allowed to do without seeking a popular mandate from the electorate (or the citizenry) to do it.

Prof. Mutua is one of the dozens of constitutional thinkers who shaped the language in Article 10 of the Constitution, particularly the inclusion of the words "sharing and devolution of power, the rule of law, democracy and participation of the people" in paragraph (a) of clause (2) of Article 10. Prof. Mutua's inclusion among the coterie of advisors appointed by the president, to advise him on constitutional affairs, was a surprise, particularly as the president had among his team Mr. Kennedy Ogeto, the former Solicitor-General, to advise him on the same matters and, more importantly, the president has ready access, day and night and on short notice, to the Attorney-General and the entirety of the State Law Office.

It was clear that Prof. Mutua was taken on as part of the president's rapprochement with the late Prime Minister, Raila Odinga, which rapidly took shape after the 2024 anti-Finance-Bill Gen Z protests. Mr. Odinga got the chance to include in the Cabinet and the Executive office of the President his acolytes and confidants, such as Prof. Mutua. Had Prof. Mutua carried on in the same vein he had when he was advising Mr. Odinga on what we needed to do to live up to the highest ideals of the Constitution, we would not be having this conversation. But he seems to have adopted the president's and the president's other advisors' views on the expansive powers conferred by Article 132, and set aside his own long-held views on the need to limit presidential power. The dissonance is blindingly glaring.

Dr. Ndii's position is not untenable. He is a political mercenary. If he ends up being paid a pretty shilling, that is the price we pay for not waging a successful counter-insurgency against his political machinations. I will not begrudge him his victories just as I will not begrudge Katiba Institute its successes in the High Court against Dr. Ndii. But for Prof. Mutua, one must wonder: did he ever believe any of the things he said and wrote in his decades in the constitutional wilderness with the fighters of the Second Liberation and the army of constitutional lawyers who made impassioned submissions on the need to limit the power of the imperial presidency?

It is a truism that once a person is sucked into the very heart of the Government, it is almost inevitable that they will be seduced by the power, pomp and circumstance. Nothing quite prepares you for the way the power is wielded and how it shapes destinies. It is quite devastatingly powerful and few can resist its allure. You snap your fingers, and shit gets done. Doors are flung open for you. Red-carpet treatment is laid out for you. Everyone - and I mean, everyone - answers your phone calls. Promptly. And if you have a keen ear, you will hear them answer your phone calls at attention. It is enough for you to start thinking, "I deserve this. I am meant to be here. This is what I was made to be." Until Katiba Institute blows up your dreams into a million pieces. We should heed the warning by John Emerich Edward Dalberg-Acton, 1st Baron Acton, 13th Marquess of Groppoli.

Starting to cope with Baba's absence

Even Mr. Rigathi Gachagua has the good sense to pretend that he loved Raila Odinga unreservedly. The late Mr. Odinga was a force of nature, a political phenom. He shaped and reshaped Kenyan politics. He became an institution. It didn't matter what power presidents thought they had, if Raila Odinga adopted a position on any matter, the president had to figure out how much political pain he was willing to endure to try and prove Raila Odinga wrong. More often than not, the president chose peace.

So it is no surprise that men and women of little political consequence are today pretending to have been Mr. Odinga's closest boon friends, that they stood with him even when he was tilting at windmills, that they were the wind beneath his sails, and that they espoused the same [often radical] politics he espoused. In the days after his state funeral, you have seen these political dwarfs lining up at Mr. Odinga's grave, laying wreaths, and paining themselves as the spiritual; successors of Mr. Odinga's politics. It is a wonder Mama Ida Odinga has not chased them from her who with a kiboko.

We are still coming to terms with Mr. Odinga's death. We should have been better prepared; even international icons die. Mr. Odinga was quite aged, and it was unreasonable to expect that the would outlive us all. And because we were not prepared, we are trying, in our own way, to shape the post-Raila-Odinga era, with charlatans and scallawags taking on airs and pretending to being the Second Coming of Raila Odinga, while others try, in underhanded and scurrilous ways, to erase from the historical record the vile and hateful things that said about, and did to, Raila Odinga.

I don't know who among the contenders will inherit Mr. Odinga's political kingdom. But in the 22 months to the next general election, Mr. Odinga's shadow is going to loom quite large. In his political party, the Orange Democratic Movement, no amount of PR engineering is going to Make Mr. Oburu Odinga, Mr. Odinga's elder brother, a charismatic leader. Neither will it make Ms. Gladys Wanga, Homa Bay Governor, any more popular now as she was when Mr. Odinga anointed her as the Homa Bay gubernatorial candidate. The true battle for the leadership mantle in ODM is surely going to be between Mr. Edwin Sifuna, Secretary general and Senator of Nairobi, and Babu Owino, Member for Embakasi East, isn't it? No one knows.

Kenya's political opposition is practically dead. The Minority Party exists in name only. It does not have a unifying figure to direct its energies. Ms. Martha Karua, indefatigable as she might be, is in the same leaky dinghy as Mr. Gachagua and Mr. Kalonzo Musyoka. No one is listening to her, just as no one is listening to the other two has-beens. Peter Anyang' Nyong'o and James Orengo, the late Mr. Odinga's closet political confidants are over the hill same as Mr. Oburu Odinga; they will not be building a political movement on the memory of the late Mr. Odinga any time soon. Their political glory days are long in the past.

The ODM appointees in the Cabinet will keep their mouths shut; no one with any sense talks with their mouth full. The ODM parliamentary party is going to maintain a studious silence as well. Even there champion debaters will say little worthy of attention. They are all trying to work out if they have a political future now that the political memory of the man who brought them to political prominence is swiftly being co-opted by charlatans and scallawags.

The political moment is in President Ruto's hands to shape or shatter. Only one man has the political charisma to affect how his presidency will evolve in the next 22 months: Uhuru Kenyatta. But will Mr. Kenyatta lose interest? Will he demonstrate the late Mr. Odinga's deft political touch? Or will he foolishly and obstinately insist on the deeply unpopular and unliked Mr. Fred Matiang'i as the vessel of his politics?

The King is dead; Long Live The King.

Junet Mohamed, in his eulogy for the late Second (and Longest-Serving) Prime Minister of Kenya, the Right Honourable Raila Amolo Odinga, Elder of the Order of the Golden Heart, took to heart the allusion to Raila Odinga's "Orphans". He noted that there were so many of them, he would organise them into a group and become their chairman. Amidst the humour is a nugget of truth: Prime Minister Odinga was a force of nature who touched millions of hearts and changed millions of lives.

We will have all the time in the world to parse together the life and times of Prime Minister Odinga. For now, we must contend with the void that his death leaves in the politics of Kenya. Prime Minister Odinga has been a consequential politician since the day he was accused of participating, and sponsoring, the 1982 attempted coup d'état against Daniel Toroitich arap Moi.

Those of us who came of age in the 1990s only came to know of him when he was released from detention in 1991 and the pivotal role he played, first at his father's side, and later as an Opposition politician in his own right, in the Second Liberation of Kenya. Few will deny him his flowers; Prime Minister Odinga was a key figure in the reintroduction of Multi-party Politics in Kenya, the constitutional reform movement that resulted in the abortive 2005 constitutional referendum and the successful 2010 constitutional referendum.

Prime Minister Odinga built a formidable political identity, one that has seen dozens of national politicians gain fame, wealth and power. There isn't a politician sitting in the Parliament of Kenya today whose fortunes were not shaped by Prime Minister Odinga. The same is true of county governors, past and present, and dozens upon dozens of local politicians. One either made their name by vehemently and vociferously railing against Prime Minister Odinga or by riding in his coattails to the seats of political power.

Presidents bent to the inevitable: in order to govern, and govern effectively, they needed Prime Minister Odinga, if not on their side, but not in opposition. The Raila Odinga Handshake was the most reliable political insurance policy a president could have. Moi, Kibaki, Kenyatta the Younger and Dr. Ruto - all of them came to the same inevitable conclusion and their governments enjoyed a stability no other politician, themselves included, could provide.

Now that we have buried Prime Minister Odinga, we are in uncharted waters. Mr. Kalonzo Musyoka, one of the senior-most politicians who transcended the same political period as Prime Minister Odinga lacks that charisma and political sure-footedness that Prime Minister Odinga displayed. Ms. Martha Karua, one of Prime Minister Odinga's lawyers when he was persecuted by Mr. Moi, has the political spine, but not the common touch that endeared Prime Minister Odinga to millions. No one else has even the lickspittle of a chance to become the force of nature that Prime Minister Odinga was. We are in uncharted waters. Will Prime Minister Odinga's "Orphans" find among them a champion to carry forward Raila Amolo Odinga's dreams for Kenya?

What Mr. Imanyara must teach us

Gitobu Imanyara was on the frontlines of the Second Liberation, one of the few principled political streetfighters that Kenya actually deserved. Then he got elected to the National Assembly and it all turned to shit. He is not the first political radical to have forgotten the lessons of revolution, the most important being that while a revolution needs men and women to lead from the front, the revolution needs an institutional movement to make the gains of the revolution permanent.

In the Sunday Standard of the 5th October, 2025, Mr. Imanyara says what has become common knowledge: seven [honest] men will save Kenya. This is disappointing.

There are many men and women who have made sacrifices in the name of Kenya and for Kenyans. They have offered not just their bodies, but their intellect and influence to shape the politics of the country. For the most part, they have achieved many big and small gains. But they have singularly failed to alter the trajectory Kenya has been on since Independence. Kenya has entrenched a form of corrupt ethnic balkanisation that has all but guaranteed that the trajectory of the human development index is downwards.

There was a period, sometime in the 1980s and ending with the 1992 multiparty general election, when the Kenyan political revolution was truly organised. It not only established a broad cohort of men and women who would lead the revolution, it also generated a wealth of political discourse that shaped what would become the first draft of Harmonised Draft Constitution of 2010. The Mwakenya writing, the columnists who wrote for Society and Finance, the "opposition" lawyers who defended political prisoners, the Mothers of Political Prisoners who protested for months at Freedom Corner, the Green Belt Movement that challenged the anti-human environmental policies of the Moi government...the list is long...most of their work has been undermined, watered down, distorted and, in some cases, reversed in the decades since the 1992 general election.

Instead, we have been programmed to believe that what Kenya needs is a saviour, or a group of saviours, who will right the ship of state. We no longer speak of organising or institutionalising the revolution. We place enormous faith, and pressure, on individuals to reform the country without building the necessary infrastructure that will assure success. Political parties, newspaper and news magazine columnists, playwrights and filmmakers, musicians and novelists, public debates and intellectual tradition, everything that we need to institutionalise and organise the revolution is a for-profit arrangement that prioritises extremely short-term gains at the expense of the long-term development of the country.

It is why people are suddenly excited that Mr. Maraga has appointed the United Green Movement Party as his political party briefcase of choice to bring him to the highest seat of political power in Kenya. And why people haven't taken time to ask why a political party that seemed to have sprung to life in 2019 with a slate of registered members from all counties in Kenya did so without running a single recruitment exercise in the months before its establishment and registration. Who are these mysterious Kenyans who had not only heard of and agreed with the political message of the United Green Movement Party, but chose to register with the political party, hand over some of there personal information, and agreed to be entered as founder-members of the political party when it was registered by the Registrar of Political Parties?

Even the few saviours we have elected to Parliament don't seem to know how to understand how the government actually functions. They have ideas. Some of their ideas are great ones. But they seem confused about their role in the government. Indeed, many of them refuse to accept that they are in the government. Take Mr. Omtatah's obsession with public finance. As a senator, he has the power to summon the Cabinet Secretaries responsible for public money to appear before the Senate and account for how they have spent the public money entrusted to them. Mr. Omtatah has not done so even once.

He also has the power to introduce in the Senate legislative proposals (Bills) that would reform the public finance management framework. He has done so only once and the proposal itself was a miss-mash of confused musings about public debt and the public debt management office. Needless to say, beyond publishing the Bill Mr. Omtatah did little to promote it among his Senate colleagues, and ignored the vital role of the National Assembly in seeing to it that it was enacted by Parliament. Instead, Mr. Omtatah has not missed an opportunity to sue the sue government he's serves in whenever it has enacted a Finance Bill. His litigation victories since he became a parliamentarian have been on very narrow points of the law, and have done little to reform the government he serves in.

The point I am trying to make is that Mr. Imanyara's prescription for what ails Kenya is what we have practiced since 1992 without success. If he were to pay attention, even he would admit that the promulgation of a new constitution in 2010 did little to change the way Kenyan political institutions behaved; it just slapped a veneer of legitimacy on them. But, by and large, the corrupt ethnic balkanisation that prevailed in the 1990s continues to poison the body politic in 2025. Given his vast experience in the radical political opposition in the 1980s, what Mr. Imanyara should be helping us to do is to rethink everything we know about political organisation and institutionalisation of the not-yet-over revolution. We need to rebuild, from the ground up, political institutions, political ideologies, political thinking, and political streetfighting. Wow must eschew the narrative that we need Messiahs. No one is going to save us. Only we, the body of Kenyans, collectively, can save ourselves.

The definition of "insanity"

Now that we are all committed to campaigning for the various elective posts in the national government at the 2027 general election, regardless of the fact that we have not implemented many of the promises we made to each other during the 2022 general election, it is time to revise some of my hobbyhorses. One of my obsessions is whether the system we are participating in right now is capable of identifying, promoting, nominating and electing qualified politicians to successfully stand in the general election and effective perform the functions of the State offices to which they are elected. My view, as always, is a mixed one, but the short answer is, "No."

Kenya inherited the Westminster style of politics from the English and, through several constitutional amendments and statutory tweaks, adapted it to the peculiar style that Jomo Kenyatta and the Kiambu Mafia promoted before and after Independence: the Balkanisation of Kenya into tribal fiefdoms with tribal satraps pledging the troth of their tribes to the president, and not to their own tribal interest. In return, the president would appoint the tribal satraps to high public office, usually the Cabinet but also assistant minister, chairman of the board of a parastatal, ambassador or diplomat of some kind, head of a powerful government organisation like the Kenya Police Force, and so on and so forth.

For nigh on forty years a majority of Kenyans believed that if their tribal satrap was "in government", they too, were "in government" and the fabulous wealthy their tribal satrap acquired during his tenure "in the government" was a reflection of the tribe's power and influence "in the government". Obviously, any casual observation of the country the past fifty years shows that this is not true. Urban areas, for their most part, benefited immensely from the "development budget". The rest of the country would get piecemeal "development" as and when the president deemed it necessary to secure a political goal. It had nothing to do with the power of their satrap or the needs of the people that a road or a school or a factory or a dam or a hospital or a university was built in their "area". All that mattered was that the president would get something out of it in the end.

This lesson appears not to have been learnt.

Chief Justice (Emeritus) Maraga has thrown his hat in the presidential election ring. For this, he has chosen the United Green Movement Party as his vehicle to State House. He has promised to "popularise and strengthen the party". It is sad that a man in his mid-seventies, who has been witnessed to epochal political transformations in this country, is continuing in the legacy of buying briefcases and thinking that he is the new broom that will sweep the Augean stables clean. When he fails - and he will fail - he will not have the necessary political education to understand why he failed.

There are no shortcuts to organising a people. It takes time, effort, money, charisma and, sometimes, violence, to get them to see that their fate can only be salvaged if they row int he same boat and in the same direction. The Hon. Mr. Maraga's political party of choice has been in existence only since 2019. In that time, it has done little, if anything at all, to "popularise and strengthen" itself. It has not established a system for subscription-based membership. It has obsessed itself with he "national leadership" and has done little, if anything, to establish grassroots leadership cadres and the village and ward levels. In my opinion, it is not a serious party regardless of its lofty ambitions.

The same is true of all the other political parties. Not one of them is a member-driven subscription-based political party. None of them prioritises the establishment, promotion, support and development of grassroots leadership cadres at villages or ward level. What is worse is that their total focus, to the exclusion of everything else, is the presidential election; all the other elections are of interest only to the candidates yet, in the balance, a member of a county assembly has the ability to improve your quality of life that is on an order of magnitude greater than what the president or county governor can do.

It is irrelevant that counties are organised, largely, on the basis of linguistic and ethnic identities; all of them suffer from the same dearth of political education, political leadership and political knowledge. If this doesn't change, then we will be repeating the same failed pattern of behaviour we have practiced since 1964 when Jomo Kenyatta pushed through the first constitutional amendment and the result will be the same failures we have endured since Independence.

Constitutional lawyers are a menace

Lawyers are a fascinating lot and none is as fascinating as that species of lawyer known as "constitutional lawyers'. These people have such an inflated sense of themselves that they frequently forget that in Kenya, they are the equivalent of rats and lowlifes. Last week one of them pontificated on the reasons for why Kenya's elections are expensive and I swear, he it did not seem like he had given the matter more than a cursory thought.

This is my two-shillings worth of the thing: Kenyan elections are expensive because Kenyan politicians, public officers, parliamentarians, civil society and lawyers willed it to be so. Let me explain.

Unlike in the case of more sensible jurisdictions, Kenyans have built for themselves an electoral edifice that prioritises public corruption over and above all else. The entire purpose of seeking elected office in kenya is to get a chance to stick all ten fingers and ten toes in the public purse; after all, almost every major public tender has a parliamentarian, county elected representative, senior public officers and members of the Black bar as the primary beneficiaries, not the people of Kenya.

Even the election itself is an opportunity for these people to eat. After all, someone has to supply electoral materials, professional services like accountancy and legal services, security, transport, accommodation, food and beverages, and dozens of other supplies to not just the electoral commission, but to every single public entity involved in the election, including the police and intelligence services. The prices of these supplies will be inflated ten-fold, delivered late, if at all, comprising things of such poor quality that of what is delivered, wholly one-half will be discarded. And the thing of it is that no one, not the Auditor-General or the Public Accounts Committee, will enquire to closely at what was delivered, how much it cost, and who ate.

Lawyers, especially, have fomented such a poisonous air of suspicion that to is no longer tenable for basic education teachers and assistant chiefs to be appointed as polling station clerks and returning officers. Lawyers will point at the fiasco that was the 1988 Mlolongo KANU election as proof of their reasoning and leave it at that as if Kenya is still a single-party dictatorship. Instead, every five years, we engage in a very expensive exercise of securing the services of at least 58,000 polling station clerks and returning officers to supervise the general election, all of them drawing allowances, and supplied with airtime, data bundles, communications devices, transport, food, drink and other amenities at eye-watering prices. That, and the fact that we seem to procure an electric voter registration software worth tens of billions of shillings for each and every general election, is the main reason "elections are expensive" in Kenya.

Kenya has entirely too many constitutional lawyers who do little to make Kenya's constitutional experiment function effectively. Our constitutionalism has been sacrificed at the alter of the planet-sized egos of our constitutional lawyers, and expensive general elections are the clearest sign that we need a different way of thinking about constitutional affairs. We can no longer afford to be held hostage to the reckless musings of constitutional lawyers. The cost, in fiscal terms alone, is too high.